Nagales v Public Service Commission [1997] FJHC 281; HBJ0009.1996 (24 October 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO.HBJ0009 OF 1996

IN THE MATTER of an application by Mario Nagales Padua
for a judicial review of a decision of the Public Service Commission
made on 6th March 1996.

Between

Mario Nagales
Padua of Labasa Medical Practitioner.
Applicant

And

Public Service Commission
Respondent

Counsel: Mr A. Kato for Applicant
Mr D. Singh for Respondent

Decision: 24th October 1997

DECISION OF PAIN J
ON MOTION FOR LEAVE TO APPEAL

This is an application by Mario Nagales Padua (the Applicant) for leave to appeal to the Court of Appeal against the decision of this Court refusing his application for leave to apply for judicial review of a decision of the Public Service Commission (the Respondent) terminating his contract of employment as a Medical Officer at Labasa Hospital.

No affidavit was filed in support of the application. Neither the application nor counsels submissions adverted to the basis for the application. The Court presumes that leave to appeal is required pursuant to Section 12(1)(f) of the Court of Appeal Act (CAP 12) as a decision to refuse leave to apply for judicial review is an interlocutory decision (Charan v Suva City Council, C.A. Civil Appeal No.29 of 1994).

Counsel requested that this application for leave to appeal be determined on the basis of written legal submissions from counsel for each party without a hearing. These submissions have been filed and considered by me.

Neither written submission addresses the approach that should be adopted or principles that should be considered by the Court on an application for leave to appeal. Each submission considers, in a fairly limited way, the merits of the Court’s decision refusing leave to apply for judicial review.

Leave to appeal from an interlocutory order of this Court is sparingly granted. Generally it will only be granted if the interlocutory order effectively brings the action to an end or where substantial injustice would result from allowing the interlocutory order to stand. (See, for instance, Nieman v Electronic Industries Ltd. 1978 VR 432; Ex parte Bucknell [1936] HCA 67; 56 CLR 221 and Dunstan v Simmie & Co. Pty. Ltd. 1978 VR 649).

In the present case the refusal of leave to commence judicial review certainly brings an end to judicial review proceedings by the Applicant. However, it does not necessarily finally determine the substantive rights of the Applicant against the Respondent. If, as the Applicant alleges, the Respondent was unjustified in terminating his employment, the Applicant could bring a civil action for breach of the contract of employment.

In my view a Judge who has refused leave to commence judicial review on the grounds that there is no arguable case should not readily grant leave to appeal. The two are "mutually inconsistent". (See R v Secretary of State for the Home Department, ex parte Ryoo, [1992] C.O.D 134 cited in 1995 Supreme Court Practice para 53/1 - 14/34 Volume 1 page 860.)

In Lakshmi Prasad v Gyan Prakash (Civil Appeal No.40 of 1996, decision 15th August 1997) the Fiji Court of Appeal considered an application for leave to appeal against the refusal in the High Court of leave to commence judicial review on the grounds that the Court "would not on the facts stated in the application grant an order of certiorari". The Court of Appeal said at page 7 of the judgment:

"That is a sound reason for his exercise of the discretion to refuse leave.

Now we are asked to grant leave to appeal against the order made in the exercise of that discretion. If there is a reasonable prospect that his appeal would succeed on the grounds of appeal on which the applicant would rely if leave were granted, leave should be granted. But, if it is clear that he could not succeed on any of those grounds in showing that Sadal J’s exercise of his discretion miscarried, the grant of leave is not justified and it should be refused." (Underlining added)

Accordingly the issue to be considered in this case is whether an appeal would have a reasonable prospect of succeeding on the grounds advanced by counsel for the Applicant. This requires me to embark on the invidious task of considering the prospective merits of an appeal on the grounds contained in the written submissions.

In my decision I considered the Respondent’s submission based on R v East Berkshire Health Authority, ex parte Walsh [1984] EWCA Civ 6; [1985] QB 152 that judicial review was not available to the Applicant as termination of his employment was based on contract and no element of public law was involved. However, I followed and applied the Court of Appeal decision of Korovulavula v Public Service Commission (Civil Appeal No.6 of 1994). On the basis of that decision I held that, although the actual decision to terminate the contract could not be reviewed, the Respondent’s exercise of its discretion to invoke the provisions of the contract providing for termination was reviewable. For the reasons given in the judgment I determined that this decision was made by the Respondent in good faith and for the public good. Therefore, no case had been made out by the Applicant for the grant of leave to apply for judicial review.

The written submissions filed by counsel for the Respondent first refer to a recent decision of Palani and Fiji Electricity Authority Executive Officers’ Assn v Fiji Electricity Authority (Civil Appeal No.28 of 1996, decision 18th July 1997). It is submitted that the Court of Appeal "held that judicial review is not available in a strict master and servant relationship based on a private contract of employment where no element of public law was involved". It is further submitted that the Court of Appeal analysed its earlier decision of Korovulavula v Public Service Commission (supra) and confirmed the principles in that decision as they were applied in my decision. The submission also refers to a further decision of Pathik J in this Court which is distinguished. On the basis of these matters counsel for the Respondent submits that leave to appeal should not be granted.

The written submission of counsel for the Applicant has three sections. The first is just a formal introduction.

The second section of the Applicant’s submissions is based on the provisions of the Medical and Dental Practitioners Act Cap 255 ("the Act"). This provides that no person can practice medicine unless he is registered under the Act. It is submitted that the Applicant obtained such registration and a work permit under the Immigration Act which "were made to run for 3 years conterminous with the period of the contract of service". It is submitted that upon termination of the Applicant’s contract of employment as a medical officer, his registration as a medical practitioner under the Act and his work permit would be cancelled. It is further submitted that the contract of employment is subject to the Act which authorises the Medical Council to investigate any complaint as to the conduct of a medical practitioner in his professional capacity. (Section 36). If it thinks fit, the Medical Council may hold a formal inquiry and the procedure for this is in Section 37. It is submitted that the complaints against the Applicant which led to the termination of his contract of service related to unethical conduct and unsatisfactory performance. These fell within the ambit of Section 36 and the matter should have been dealt with by the Medical Council under that section. It is submitted that as this was not done it is a ground for judicial review. It is submitted that "the Act provides the statutory underpinning which Pain J in his judgment thought was lacking in Dr Padua’s application for leave to proceed with judicial review of PSC’s decision".

No evidence was adduced on these matters in the affidavit filed in support of the application for leave to commence judicial review. Nor was this submission made at the hearing of that application. However, I do not consider it is a ground upon which an appeal against the decision refusing leave to commence judicial review would have a reasonable prospect of success.

In my decision refusing leave to apply for judicial review the matter of "underpinning legislation" arose in my consideration of the case of R v East Berkshire Health Authority; ex parte Walsh (supra) which was relied upon by the Respondent. In that case the Court of Appeal followed several earlier decisions of the House of Lords. The Court held that a contract of employment with a public authority does not, of itself, give rise to public law issues. There must be some statutory provision which injects the element of public law necessary to attract administrative law remedies. That can be a special statutory restriction upon dismissal or other statutory underpinning of the employment.

For my part, I do not see how it can be said that the provisions of the Medical and Dental Practitioners Act in anyway restricted dismissal or underpinned the employment of the Applicant by the Respondent. That Act provides for the registration of medical practitioners in a medical register kept by the Medical Council (Section 8). It provides a sanction against any person who practices medicine without being registered (Section 34). It also provides for deletion from the register for professional misconduct (Section 27) and a procedure for any complaint about the professional conduct of medical practitioner to be investigated by the Medical Council (Sections 36 and 37). These provisions provide a statutory code for the practice of medicine. Registration under the Act may be a pre-requisite to the employment of a person by the Government (or anybody else) as a medical practitioner. That is common for other professions where some registration, licence or authority is required for practice. However, the provisions of the Act are not expressly or impliedly incorporated into the contract of employment. It is independent and does not impose upon the Respondent in this case any restriction upon the dismissal of the Applicant in terms of the contract of employment. Nor is there any requirement upon the Respondent to refer to the Medical Council any complaint about the Applicant’s professional conduct or medical incompetence before exercising its rights under the contract of service. The Medical and Dental Practitioners Act does not give the Applicant public law rights against the Respondent. At best, it could possibly give him public law rights against the Medical Council in respect of deletion of his name from the medical register.

In any event my decision refusing leave to apply for judicial review was not founded upon the absence of any underpinning legislation that would give rise to public law rights. I did not follow and apply the decision of R v East Berkshire Health Authority; ex parte Walsh (supra) which was relied upon by the Respondent. My decision is based on Korovulavula v Public Service Commission (supra) which was cited and relied upon by the Applicant.

The third section of the Applicant’s submissions contains a general submission that "the grounds already given at the hearing of this application and authority of the decision of Korovulavula v Public Service Commission adequately establish a case for the judicial review of PSC’s decision".

The grounds argued at the hearing of the application for leave to commence judicial review have already been considered by me and are dealt with in my decision refusing leave. The general submission now advanced by the Applicant raises nothing new and does not identify any specific error in the decision refusing leave. In particular there is no specific submission that the legal principles enunciated by the Court of Appeal in Korovulavula v Public Service Commission (supra) have been misunderstood or have been incorrectly applied to the facts of the present case.

I have carefully considered the written submissions of counsel for the Applicant. I do not see that any grounds have been advanced upon which an appeal would have a reasonable prospect of succeeding. Of course, no judge would lay claim to infallibility. I take comfort from the provisions of Rule 26 of the Court of Appeal Rules. This will still give the Court of Appeal power to intervene if the matter is pursued further by the Applicant and some error is found on my part.

The application for leave to appeal is refused.

Justice D.B. Pain